V1501 – The Insurer Shall (Not Always) Pay for Catastrophic Assessments
We have seen many decisions released over recent years that deal with the issue of catastrophic assessments and their costs. Arguably, it is now settled that catastrophic assessments are to be paid at the insurer’s expense; the costs are not to be paid out of an injured person’s medical and rehabilitation benefit coverage limit. To this point, we highlight Adjudicator Ferguson’s comments as found within the decision N.S. and Scottish & York (Tribunal File No. 17-007962/AABS):
“The effect of deducting CAT assessment costs from the $50K available to “not-yet-CAT” consumers would be to force seriously injured people to plan to hold a significant percentage of entitlement – in this case 37% — in reserve, just in case they need a CAT assessment. This would represent a serious deterrent to seeking needed treatment, or alternatively act as a major barrier to seeking CAT determination. I find it simply unbelievable that such obvious effects are intended or supported by any reasonable interpretation of the Schedule.”
With regards to an insurer’s obligation to pay the costs of catastrophic assessment, and recognizing that Section 25 of the Statutory Accident Benefits Schedule confirms that the insurer “shall pay” reasonable fees charged for such assessment, it is notable that the obligation is not absolute. Indeed, there has to be a reasonable expectation that the person may be found to be catastrophically impaired; the proposed assessments must be accepted as being reasonable and necessary to the claim.
In A.W.A. and Certas Home & Auto Insurance (Tribunal File No. 18-007207/AABS), Adjudicator Paul Gosio considered the insurer’s denial of a catastrophic assessment. The request related specifically to the mental or behavioural disorder criterion. Certas’ position was that it was unreasonable to expect a catastrophic impairment to be confirmed and it was thus not necessary to investigate the matter.
In considering the dispute, Adjudicator Gosio reviewed the available medical information. In so doing, he gave very little weight to the findings of the applicant’s psychologist; the assessment had been completed without the assistance of an interpreter despite the presence of a language barrier. The insurer’s psychiatric examination, in contrast, had been conducted with the aid of an interpreter and it was thus preferred. While the psychiatric assessment screened negatively for disorders, the examiner did recommend a neuropsychological evaluation such as to explore the etiology and severity of the applicant’s reported problems. The insurer subsequently arranged a neuropsychological assessment and it found no convincing evidence of impairment.
In the two or so years that followed the above noted assessments, and as acknowledged by Adjudicator Gosio, there was very limited information on record as related to A.W.A.’s possible ongoing psychological impairment.
With such weakness in the record, it is unsurprising that Adjudicator Gosio sided with Certas in his decision. He agreed that there was no objective evidence to suggest that A.W.A. may have suffered a catastrophic impairment due to mental or behavioural disorder. The denial of the catastrophic assessment was maintained accordingly.
This case is intriguing though. One can’t help but wonder if A.W.A. may have actually had significant psychological distress. Perhaps there was possibility of catastrophic application. After all, why would the catastrophic assessment have been requested but for the presence of severe distress? We are left wondering about her status and functioning. Was she engaged in rehabilitation? Had she spoken with her physician or was there psychiatric referral underway? Had she explored medication or other treatment options? What were the concerns and observations of her friends and family? Did her language barrier prevent or challenge her in terms of her ability to access care?
While we are left without answers to our questions, we are reminded of the importance of medical and rehabilitation programming. We are equally reminded of the importance of reporting and documentation. Reasonably, we can expect that the denied catastrophic assessment would have been approved if impairment had been reflected within the available records in this case.
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